Briggs presses ahead with Online Court and challenges profession to get to grips with unbundling

Lord Justice Briggs published his final report on the structure of the civil courts and retained his strong support for the creation of an online court for claims worth up to £25,000 – which he said should be called the Online Solutions Court – although he has shifted position to say that parties should be able to recover a limited amount of legal costs.

But he has challenged solicitors and barristers to overcome the difficulties they see with providing unbundled advice, rather than full retainers, in lower-value cases.

In a report that largely confirmed the views set out in his interim report in January, Briggs LJ said: “If [my 62 recommendations] are all substantially implemented, then the essentially high quality of the civil justice service provided by the courts of England and Wales will be greatly extended to a silent community to whom it is currently largely inaccessible, and both restored and protected against the weaknesses and threats which currently affect it.”

In the 299-page report, the judge said it was “not a design objective of the Online Court to exclude lawyers. The underlying rationale is that whereas the traditional courts are only truly accessible by, and intelligible to, lawyers, the new court should as far as possible be equally accessible to both lawyers and LiPs [litigants in person].”

In broad terms, the three stages of the online court would be: an automated online triage stage designed to help LiPs articulate their claim in a form which the court can resolve, and to upload their key documents and evidence; a conciliation stage, handled by a case officer; and a determination stage, where those disputed cases which cannot be settled are determined by a judge, by whichever of a face-to-face trial, video or telephone hearing or determination on the documents is the most appropriate.

The report provided more nuance for the first stage. It would start by providing, for the claimant and (perhaps) defendant, “all those pieces of vital guidance about treating litigation as a last resort, about the sources of affordable or free advice, and perhaps some commoditised summaries of the essential legal principles”.

There would then be a short exchange between the parties designed to find out whether there really was a dispute which the court needed to resolve. “This recognises the fact that the majority of claims issued in the civil courts are undisputed.”

“By-passes” would be introduced for legally represented parties that do not have to go through the stages that would be needed for a LiP.

Briggs LJ said the Ministry of Justice has decided that the Online Court should have separate rules and procedure, governed by a new, separate, rules committee, and that it was preparing primary legislation to that end.

“Their main driver for this decision is the view, which I continue to share, that nothing less will bring about the change from an excessively lawyerish culture necessary to enable those without lawyers on a full retainer to navigate the court’s processes.”

But he said the court should “stimulate the provision of early bespoke advice on the merits for would-be litigants (claimants and defendants alike) from a qualified lawyer”.

However, it should not be assumed that either the solicitors’ profession or the bar “will easily be able to adapt to a model which makes the provision of such early advice, uncoupled (or unbundled) from a full, expensive retainer, a practical possibility”.

Solicitors were wary of negligence claims for providing less of a service “than regarded at present as culturally normal”, while the bar was “apprehensive that it lacks the business structures and investment which would enable it to compete with solicitors as the would-be litigant’s first port of call”.

The judge said: “I do not underestimate these professional difficulties, but I consider that the time has come for facing up to them and overcoming them to the extent that affordable early advice on the merits of a case becomes generally available, uncoupled from the disproportionate expense of a full retainer.

“I consider that some incentive to doing so could be provided by making the obtaining of that advice, from a qualified lawyer, an element of fixed recoverable cost in proceedings in the Online Court…

“I have reached the same conclusion, although with less confidence, about making provision for some fixed recoverable cost in respect of some legal representation at some trials. There will be cases where a dispute of fact, unsupported by contemporaneous documents, is central to the outcome of the proceedings, and therefore warrants skilled cross-examination from an experienced advocate.”

He suggested that the Civil Justice Council could help in setting the levels of such fees.

He said access to the court for those who were not online was the key problem identified during his consultation. “The solution lies in my view in the most intense search for, funding, development and testing of services to assist the computer-challenged…

“Some parts of the solution are becoming clear. Designing all the IT for use on smartphones and tablets rather than just on desk-tops and lap-tops is widely regarded as greatly widening the class of court users likely to benefit from it.”

While the £25,000 ceiling should be the “first steady-state ambition”, Briggs LJ saw “a good case” for a soft launch, possibly starting at £10,000 and just with money claims – although “I can see no good reason to exclude unspecified money claims en bloc”.

At the same time, personal injury/clinical negligence claims need not be in the court, given the “vibrant” market for legal representation that exists for them at the moment, while possession and housing disrepair should also not be in it, along with – at least for the time being – professional negligence claims.

“While I have no doubt that its design and launch will be attended by setbacks, teething troubles and unexpected difficulties, I consider that the objective of making the civil courts more generally accessible to individuals and small businesses, for a just resolution of their simpler and small to modest value disputes at proportionate cost, fully justifies the risks in stepping a little into the unknown, and even the small risk that the time, money and effort about to be devoted to it may turn out to have been wasted.”

Briggs LJ’s other key recommendations were:

Case officers – a senior body of court lawyers and other officials, with at least a law degree and some experience of legal practice, who could assist with certain functions currently carried out by judges, such as paperwork and uncontentious matters. They would be trained and supervised by judges, and their decisions subject to reconsideration by judges on request by a party.

Enforcement – there should be a single court as the default court for the enforcement of the judgments and orders of all the civil courts (including the Online Court). This should be the county court, but there would need to be a “permeable membrane” allowing appropriate enforcement issues to be transferred to the High Court, and special provision for the enforcement of arbitration awards, in accordance with current practice and procedure. All enforcement procedures would be digitised, centralised and rationalised.

Mediation/ADR – a court-based out-of-hours private mediation service should be re-established in county court hearing centres prepared to participate, “along the lines of the service which existed prior to the establishment and then termination of the National Mediation Helpline”.

Deployment of judges – the principle should be that no case is too big to be resolved in the regions. The current acute shortage of circuit judges specialising in civil work in the county court needs an urgent remedy.

Number of courts and future of the divisions – “The creation of a single online portal for the issue of all civil proceedings can relatively easily be designed so as to give the courts, rather than the parties (and in practice the claimants) control of the geographical location of the handling, management and determination of a claim, without having to erect a unified civil court for the purpose.” The time has come for a decision about the future of the High Court’s divisions, but that was beyond the scope of the current review.

District registries and regional High Court trial centres – the concept of the district registry as a place for the issue of High Court proceedings will eventually be replaced by a single portal for the issue of all civil proceedings, and should then be abolished.

To enable the handling of regional category A civil cases in regional courts, such cases should be treated “as a burden on the London lists of the relevant High Court judges but on the basis that, when the case reaches its hearing date, a London judge is allocated to hear it in the relevant regional centre, not as part of a circuit visit, but as an allocation to a specific case”.

Routes of appeal – there should in due course be a review of the question whether the recent reforms to the procedure of the Court of Appeal should be extended to cover appeals to the High Court and to circuit judges in the county court, based upon better time and motion evidence than is currently available, and in the light of experience of the reforms in the Court of Appeal.

Boundaries between jurisdictions – the Family Court should be given a shared jurisdiction (with the Chancery Division and the County Court) for dealing with Inheritance Act and disputes about co-ownership of homes. There continues to be a case for convergence between the employment tribunal (and Employment Appeal Tribunal) and the civil courts, but the detail is a matter beyond the scope of the review.

The threshold between the county court and High Court should be raised to either £250,000 or £500,000 across the board, with Briggs LJ preferring the latter.

The Lord Chief Justice, Lord Thomas, said: “Lord Justice Briggs has delivered a detailed and innovative final report, which the senior judiciary – working with the government and HM Courts and Tribunal Service – will now consider with care.

“While a number of the reforms being recommended are already an integral part of the HMCTS reform programme, such as the Online Court, the report has benefited from wide consultation which will help to improve the design and planning of those reforms.”

3 Responses to “Briggs presses ahead with Online Court and challenges profession to get to grips with unbundling”

This is a huge step towards digital dispute resolution becoming the norm, as it will be for legal services generally.

Martin Langan on July 27th, 2016 at 2:11 pm

“The Online Solutions Court” The word “solutions” is superfluous. Civil courts are implicitly the place for “solutions” .

Dave Bowman on July 28th, 2016 at 11:51 am

I and some colleagues are currently focusing on two other problems with civil litigation – the lack of a functional system of pleading and the shortage of legal aid funds. We have developed some methods of alleviating both of these problems. We are making plans to trial them in a legal aid office.
Chris Enright

Legal Futures Blog

A recent Legal Futures article reported that the number complaints involving use of social media by barristers is increasing. The BSB have warned that “as social media and the internet become more prominent in our daily lives, there is an increasing need for barristers to be very careful about what they post whether in their professional or personal lives”. While inappropriate use of social media isn’t anything new, what struck me when reading that paragraph is that, for barristers, I would argue, there shouldn’t be a defining line between the personal and professional. As a barrister, you are your own USP, your personal brand is everything.